By Ann Boehm, February 19, 2020
I know, I know. The Bobby McFerrin hit song was “Don’t Worry Be Happy,” not “Don’t Worry Be Jolly.” But I want to provide a way to make you remember one of my favorite Federal Circuit cases in recent years – Jolly v. Department of the Army, 711 F. App’x. 620 (2017). (And yes, I’m sorry that song will now be in your head for the next three days. It was either this or “Hello, Jolly.”)
Why is Jolly a favorite, you may ask?
Well, for one thing, it says pretty darn clearly that it is NOT a due process violation for a Deciding Official in a discipline matter to know about the employee, the facts of the case, and the employee’s background.
And why is this important? I hear too often from agencies that they won’t let a second-level supervisor serve as the Deciding Official because they “know too much about the case,” and it would be a due process violation. Agencies then rope in some other unsuspecting supervisor from another office to serve as Deciding Official. According to Jolly, this is not necessary!
Jolly also indicates that agencies may remove federal employees for making threats. I’ve seen people visibly shaken due to fear about employees who make threats, and far too often agencies are afraid to terminate the employee. Jolly says you can. In my opinion, you should!
So, here are the facts in Jolly.
Employee Jolly was a Health Systems Administrator at an Army medical center. During a meeting with a unit chief to discuss concerns about her supervisors and work schedule, employee Jolly asked the chief “if she had heard about the [recent] Camp Lejeune and Fort Hood shootings.” Jolly, 711 F. App’x. at 621. She added that “her supervisor, and Col. Barrow, her second line supervisor, needed to be careful, to leave her alone and not to mess with her.” Id.
The Army proposed her removal on the very sensible charge of “conduct unbecoming a federal employee,” based upon her “inflammatory and/or menacing comments which reasonably placed fellow employees in fear.” Id.
So, guess what Jolly did? She appealed. She argued her punishment was too harsh. She also argued her due process rights were violated because Col. Barrow — as target of her remarks and Deciding Official — was not impartial. The MSPB Administrative Judge, the MSPB, and the Federal Circuit all agreed that the punishment was appropriate and that there was NO DUE PROCESS violation!!
Here’s some of the lovely language from the Federal Circuit about due process:
“First, ‘[a]t the pre-termination stage, it is not a violation of due process when the proposing and deciding roles are performed by the same person. The law does not presume that a supervisor who proposes to remove an employee is incapable of changing his or her mind upon hearing the employee’s side of the case.’” Id. at 623 (quoting DeSarno v. Dep’t of Commerce, 761 F.2d 657 660 (Fed. Cir. 1985)).
But wait, there’s more:
“Second, the standards of impartiality applicable to post-termination adjudications do not apply in the context of pre-termination hearings. ‘Nothing … limits the deciding official to being a neutral arbiter or requires that the deciding official be unfamiliar with the individual, the facts of the case, or the employee’s prior conduct’ during the pre-termination hearing.” (quoting Norris v. S.E.C., 675 F.3d 1349, 1354 (Fed. Cir. 2012)). Jolly, 711 F. App’x. at 623-24.
And here’s my favorite part:
Relying upon holdings in the Third, Fifth, Sixth, Ninth, and Eleventh Circuits, the Federal Circuit noted:
[u]sually, an employment termination decision is made initially by the employee’s direct supervisor … — a sensible approach given that such person often is already familiar with the employee … Yet, these individuals are also likely targets for claims of bias or improper motive simply because of their positions. . . . [T]o require . . . an impartial pretermination hearing in every instance would as a practical matter require that termination decisions initially be made by an outside party rather than the employer as charges of bias always could be made following an in-house discharge.
Jolly at 624 (quoting McDaniels v. Flick, 59 F.3d 446, 458-60 (3d Cir. 1995)).
Pretty clear, eh? Second-level supervisors can and should be Deciding Officials. End of story.
And as much as I love the due process analysis in Jolly, I also think it is an important case for the crazy times in which we live.
If an employee is threatening anyone in the workplace, take action. Removal may be appropriate. According to the Federal Circuit, “[w]here an employee makes ‘threats … against her supervisor [that are] unprofessional and inappropriate, and … they adversely affect the work atmosphere,” the penalty of removal is “within the permissible range of reasonableness.” Jolly at p. 6 (quoting Harrison v. Dep’t of Agr., 411 F. App’x 312, 315–16 (Fed. Cir. 2010) (per curiam)).
HR folks and Counsel, when supervisors or employees are scared of an employee due to threats, do not act like there is nothing you can do. Let the supervisor propose removal. And don’t tell second-level supervisors they can’t be Deciding Officials because they know about the case. Of course they do — that’s their job. But now you know it is not a due process violation.
And heck – Don’t worry, be happy!
[Writer’s note: Jolly is “nonprecedential.” According to Federal Rule of Appellate Procedure 32.1(d), a court may “refer to a nonprecedential disposition in an opinion or order and may look to a nonprecedential disposition for guidance or persuasive reasoning.” Also, the Jolly court relies on established precedent in reaching its conclusions. If in doubt, rely on those cases.] Boehm@FELTG.com